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Sunday, November 15, 2009

Attorney General Eric Holder has made news this week announcing that Khalid Sheikh Mohammed (KSM), the alleged planner (I refuse to use the word, "mastermind," to describe a thug who allegedly planned the murder of thousands) of the September 11 attacks will be tried in a U.S. civilian court in New York City, rather than by a military tribunal. Predictably on the Sunday morning talk shows this morning, Republicans lined up to label this as a bad idea that threatens our national security and Democrats lined up to praise the move. Opponents argue that KSM does not deserve the protections of the accused afforded a U.S. citizen in a criminal trial, that such a trial may publicly expose sensitive information about U.S. intelligence gathering that will hamper our efforts to defeat international terrorism, and that the criminal justice paradigm is not appropriate for foreign terrorists who have committed an act of war.

Whether a criminal or a war time paradigm is appropriate in dealing with terrorists is somewhat of a false choice. An attack by international terrorists is BOTH an act of war and a crime. Surely a wartime footing is appropriate in going after attackers overseas and gathering intelligence that may help thwart future attacks. It may often be appropriate to gather information in ways that would be inadmissible in a criminal court if it will prevent an attack. This does not preclude formal charges and criminal trials for those apprehended after an attack.

Deciding if, when, and to what degree civil liberties can be suspended in time of war in a free society is difficult enough. However, in conventional war between nation states (or even in the U.S. Civil War), it is understood that such measures are meant to be temporary and last only for the duration of the war. Jihadist terrorism is something that the United States is likely to remain at war with for the foreseeable future. Shouldn't we then be more selective in what, if any, civil liberties we suspend in the interest of national security when the perceived need for such measures is indefinite? What good is victory, after all, if we have to sacrifice the liberty we are fighting for in order to achieve it?

But, the case of KSM presents its own challenges. Unlike Timothy McVeigh, KSM is not a U.S. citizen and not, automatically, guaranteed the protections of our Constitution. Unlike Zacarias Moussaoui (the "20th hijacker"), he was not even arrested on U.S. soil as the result of a criminal investigation. Rather, KSM was taken on the field of battle in Afghanistan by U.S. soldiers as a prisoner of war. Why then should constitutional protections apply to him? Surely it is appropriate that he be tried, as a prisoner of war, by a military tribunal. Surely, his trial by a tribunal would in no way set any kind of precedent that erodes the rights if U.S. citizens. Some of the Republicans opposed to the move argued on the Sunday morning talk shows this morning that the public trials of the 1993 World Trade Center bombers made public information about American security measures that allowed Al Qaeda to plan a more successful attack. Whether this is true or not, certainly the possibility that KSM's public trial could make public sensitive information is an important consideration.

I don't know whether the criminal court or the military tribunal is the proper venue for the trial of KSM. What I do know, is that to be credible and just, the integrity of the process must be maintained. If there are valid reasons of national security why KSM should not be tried in a civilian criminal court, there is certainly appropriate legal grounds for not offering him that venue (he is not a U.S. citizen and therefore not protected by the Constitution and he was taken as a prisoner of war on the field of battle) then try him with a military tribunal. On the other hand, the United States should never be afraid to offer constitutional protections to non-citizens (as we would with any alien apprehended for a crime within our borders, like Zacarias Moussaoui). If we truly believe, as I do, that our principles of liberty are, "self-evident," and appropriate for all people world-wide then we should not shirk from proclaiming that to the world by offering such basic civil liberties even to our enemies.

But, the integrity of the process can only be maintained if the same procedure is followed for all terror detainees apprehended overseas. KSM is being offered a criminal trial, but other terror suspects are being tried by military tribunals. This approach smells of rigged outcomes. Attorney General Holder is certain he has met criminal burdens of evidence for KSM, so he gets a show trial in New York, but others in Guantanamo for whom evidence is not as solid will be railroaded through a military tribunal. The message this sends is that the process is irrelevant so long as we get the "right result." If we can't get you one way, we'll get you another (A supporter of the administration's plan to try KSM, Rep. Jack Reed (D-RI) went as far on Fox News Sunday today to suggest that even if KSM were acquitted he could and would still be held indefinitely because of the threat he represents!). If KSM deserves a criminal trial, then doesn't every non-citizen terror suspect apprehended overseas? If there are reasons why a prisoner of war paradigm for terror detainees is more appropriate than an indicted criminal paradigm, then shouldn't KSM also be tried by a military tribunal?

I have no problem offering KSM constitutional protections in a criminal trial, so long as these protections are offered to all apprehended terror suspects. I can live with the idea that terror suspects that are not U.S. citizens and were apprehended overseas can be tried by military tribunals, including KSM. What I find inappropriate and unacceptable is selective choice of venue. Justice can only truly exist when applied equally to everyone.